McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.
The plaintiff seeks the reversal of a judgment in favor of defendants, which was entered in the Superior Court, Law Division, upon jury verdict.
A car owned and operated by the plaintiff and one owned by defendant Teresa Bilotta and operated by defendant Carl Bilotta were proceeding in opposite directions on a four-lane highway in Passaic County, New Jersey. The plaintiff turned left at a T-intersection, in order to enter the intersecting street, and the cars collided. At the time, defendant Carl Bilotta had three passengers in his car. Bilotta and the passengers are all friends and neighbors, residing in Carbondale, Pennsylvania. At the trial, Carl Bilotta was the defendants' only witness. In answer to questions concerning the whereabouts of the passengers, he testified they were still in Carbondale and that two days prior to the day of trial he requested them to come to court as witnesses, but they refused to do so unless they were subpoenaed. Their depositions were not taken before trial.
The first attack is on part of the charge to the jury. The trial judge charged the plaintiff's second request, which read:
"It is conceded that there were three adult passengers riding with the defendant in his automobile at the time of the accident. The defendant has not produced any of those persons as witnesses nor taken their testimony before trial, as he had a right to do. You have a right to consider the fact that those witnesses were not called by the defendant to testify and you may therefrom draw the inference that had they been called to testify, they would not have testified favorably to the defendant."
He then added the following:
"If you feel that Mr. Bilotta, the defendant, has deliberately not produced these people or hasn't made any proper effort to do it, why, that is a matter that you may or may not take into consideration. Of course, this matter of gathering evidence and the necessity of producing certain people, I think in all fairness I should point out to you, is largely the responsibility of counsel or those concerned with the preparation for the trial of a case and not primarily the responsibility of the party or parties themselves." (Italics ours.)
The plaintiff argues that the italicized matter constitutes prejudicial error.
When the non-production of evidence by a party permits an inference that its tenor would be unfavorable to that party's cause, it makes no difference whether the failure to produce is chargeable to the party himself or to his attorney, or to both. Here the jury was instructed, in effect, that the inference was not to be drawn if the failure to produce was that of the defendant's attorney. In so charging, the court committed obvious error.
However, we conclude that the error was not prejudicial to the plaintiff. Under the circumstances of this case, the plaintiff was not entitled to any charge that the non-production by the defendant of the passengers as witnesses, or his failure to take their depositions, permitted the jury to draw the inference that had they been called to testify, or had their depositions been taken, their testimony would be unfavorable to the defendant's cause.
As Dean Wigmore points out, when the inference is permitted it is based not on the bare fact that a particular person is not produced as a witness by a party, but on his non-production, when it would be natural for the party to produce the witness if the facts known by him had been favorable. To meet the requirement "when it would be natural for the party to produce the witness," it must appear that the person was within the power of the party to produce. Lack of power to produce may be due to the person's absence from the jurisdiction, or to his illness, or to other circumstances. Further, no inference is allowable when the person in question is equally available to both parties. Nor may the inference be drawn if the person's testimony is comparatively unimportant, or cumulative, or inferior to what is already utilized. As a general rule the inference cannot fairly be ...